Right of way
A right of way is a way over land for passage, such as a road, a drive or an alley. The phrase can name a private easement across another owner's land, or a road corridor held either in fee simple, as land, or only as an easement to pass over it.
A cattle guard statute and a VDOT survey sheet use the same words
Read the phrase in two documents a Southwest Virginia landowner might actually meet, and it turns out to describe two different things.
The first is the chapter of the Code of Virginia on trespasses and fences. There, a right of way is a private right one owner holds across another owner's land:
Any person having an easement of right-of-way across the lands of another may, at his own expense, replace any gate thereon with a substantial cattle guard sufficient to turn livestock.
Code of Virginia, Title 55.1, Chapter 28
Gates and cattle guards across such a way have rules of their own, covered by can I gate or fence across an easement.
The second is VDOT's survey manual. It sorts rights of way by what is actually held, and it will not let one kind pass for the other:
Prescriptive or statutory right of way easements are to be shown on the plans but will not be shown or labeled as existing fee right of way.
VDOT Survey Manual, Chapter 4
Local ordinances use the phrase too. Carroll County's posted 2014 subdivision ordinance defines an alley as a public or private right-of-way primarily designed to serve as secondary access to the side or rear of properties whose principal frontage and access is on a street.
Owning the strip, or holding only the right to cross it
The comparison that matters is between a right of way held as land and a right of way held as an easement.
| Fee simple right of way | Right of way easement | |
|---|---|---|
| What is held | The land in the strip itself | A privilege to use the strip for passage; the land underneath stays with its owner |
| One way it arises | Under Va. Code 15.2-2265, recording an approved subdivision plat transfers the land set apart for streets and alleys to the locality in fee simple | A private grant in a deed; and on roads with no recorded fee simple right of way, what VDOT guidance says is often described as prescriptive right of way |
Which of the two a given deed or plat actually names, what that changes for the owner, and where a property line sits along a road with no recorded fee dedication, are the subject of easement vs right of way. The broader term, with its dominant and servient estates, is defined under easement.
The strip a road occupies, on the deed, the plat and the entrance
On a land sale the phrase turns up in three pieces of paper, and each raises a different question.
- The deed. A conveyance may grant a right of way to reach the land, or except one that crosses it. Whether that language conveys land or only an easement is read from the instrument by an attorney.
- The plat. A dedicated street is not the same as a maintained one. Under Carroll County's posted 2014 subdivision ordinance, recording a plat that dedicates streets, alleys or public access does not put the county under any duty to construct, maintain or improve them. The ordinance online is dated April 14, 2014, so confirm the current rule with the county.
- The entrance. An entrance onto a state road is work where the drive meets the road's right of way. Whether a new drive needs a VDOT permit, and what one takes, is covered in do I need a VDOT permit for a driveway.
How close an entrance may sit to an interstate ramp is a separate question for commercial land, taken up in how far from an exit is still commercial ground.
Does your deed name a right of way and you are not sure what it covers?
Send the deed reference or the plat, and Lowell will point out where the right of way sits in the sale and which professional reads the instrument. No cost, no obligation.
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Questions about this term
Is every right of way 30 feet wide?
No. Va. Code 33.2-105 presumes a width of 30 feet only for a way shown under that section to be a public highway, and only in the absence of proof to the contrary. That presumption is not a minimum and says nothing about a private right of way, whose terms, when it was granted in writing, are read from that instrument. The width on a given state road is a question for the VDOT residency.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- Title 55.1, Chapter 28: cattle guards and gates across a way, and the easement of right-of-way Code of Virginia
- VDOT Survey Manual, Chapter 4: fee simple right of way, prescriptive right of way and property lines along roads Virginia Department of Transportation
- Va. Code 15.2-2265: recordation of an approved plat as a transfer of streets and easements Code of Virginia
- Va. Code 33.2-105: public highways established by use and work, and the presumed width Code of Virginia
- Subdivision Ordinance, April 14, 2014 (definitions of easement and alley; dedicated streets) Carroll County, Virginia